Rex v Masaba and Another (Cr. Apps. Nos. 97 and 98 of 1939) [1939] EACA 147 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR CHARLES LAW, C. J. (Zanzibar) and LUCIE-SMITH, J. (Kenya)

REX, Respondent (Original Prosecutor)

SALIMU SEGERO. ASUMANI MASABA Appellants (Original Accused Nos. 1 and 3)

Cr. Apps. Nos. 97 and 98 of 1939

(Appel from decision of H. M. High Court of Uganda)

Murder-Recent possession-Nexus between stock theft and murder.

Appellants and others formed a common intention to steal the deceased's cattle and carried out that intention on the evening of the 15th May, 1939. The stock in question were found in the possession of the second appellant on 18th May, 1939. The dead body of the deceased who was last seen alive some twelve to fourteen hours before the stock theft, was recovered from a river on 18th May, 1939, and showed no visible signs of external violence. There was no evidence as to how long the body had been dead or how long it was in the water. The medical testimony was to the effect that death occurred before the body came into the water, was not due to drowning, was probably due to suffocation and probably not due to natural causes.

Appellants appealed from convictions of murder.

Held (11-8-39).—That the Crown had failed to establish by way of recent possession or otherwise any nexus between the proved stock theft and the death of the man alleged to have been murdered. Rex v. Exall (4 F. and F. 922), Rex v. Rickman (1789, 2 East, P. C. 1034), Queen Empress v. Sami and another (13 Mad. 426), Sogaimuthu Padayachi and another v. King<br>Emperor (50 Mad. 274), Rex v. Yego Kitum (4 E. A. C. A. 25), considered.

Bryson for First Appellant.

Mylchreest for Second Appellant.

McKisack, Crown Counsel, for the Crown.

JUDGMENT (delivered by LUCIE-SMITH, J.).—These are consolidated appeals from convictions and sentences recorded by the learned Chief Justice of Uganda.

They are cases of no little difficulty and for that reason the Court assigned learned advocates to the appellants.

The case would appear to fall naturally into two parts: (1) the planned stock theft, as to which there can be little doubt that the appellants formed the common intent of stealing cattle belonging to the deceased Makuli and actually carried out that plan; (2) the killing of Makuli by the appellants, such killing being a probable result of the carrying out of their common intent to steal.

In considering these cases one must never for a moment lose sight of the fact that it is the duty of the Crown to prove their case beyond any reasonable doubt. The Crown must prove that Makuli was murdered and that the appellants were the persons who murdered him.

If the evidence recorded leads one to the irresistible conclusion that the two appellants in the furtherance of their common design to steal cattle killed the deceased and that such killing was a probable consequence of the execution of such common design, then the Crown have discharged the onus laid upon them.

Let us now examine the evidence; dealing first with that as regards the conspiracy to steal and the actual theft. We first have Mafabwe s/o Mangali, an admitted accomplice, who at the time of his arrest was living with the second appellant. He states that on the Saturday before the theft the first appellant approached the second appellant on the matter of some cattle. First appellant returned on the Sunday and he and second appellant had a long talk together. On the Monday the party consisting of first and second appellants and the witnesses Mafabwe and Mabongo proceeded to the hut of first appellant, arriving there about sunset. There first appellant left them for a time and on his return told them he had brought the cattle. This witness then corrects himself and says first and second appellants went off and fetched the cattle, returning with them. The party then started off with the cattle and on their way this witness says that first appellant remarked that he had stolen the cattle from one Makuli. It should here be noted that the witness says that when the appellants came back with the cattle they came from the direction of the Manafwe River, while Mabongo states definitely that they neither went in or returned from the direction of the river.

After driving the cattle some way first appellant left the party which proceeded to Tororo. The next witness Mabongo tells a story similar to that of Mafabwe if we except the direction from which the appellants came on their return with the cattle. He adds that on their way with the cattle a sheep fell in a ditch and died and this is corroborated by the witness George Woodgate who on the 19th May found the carcase of a sheep in the vicinity of first appellant's hut. In cross-examination Mabongo states that while at the hut of first appellant he heard no noise or disturbance. It is to be noted that he makes no reference to first appellant's alleged remark anent having stolen the cattle from Makuli.

Corroboration as to the meeting at the hut of No. 1 appellant and the suggestion that cattle should be stolen that night is given by Safia, the wife of first appellant. We note that it does not appear whether she was his wife by native custom or otherwise ( $Rex$ v. Nyawa, 15 K. L. R. 99). She does not think they went in the direction of Makuli's place. She also contradicts the two previous witnesses by saying that first appellant returned alone.

Next we have the witness Kigeni who some time in May, after Makuli's death, identified certain cattle at Tororo as belonging to himself and Makuli.

Subsequent to his arrest the second appellant made a statement to Inspector Woodgate. This statement deals almost solely with the

question of cattle but contains the following passage: "I did not know that Makuli was to be murdered when I went with Salim to his hut on the night of the 15th May, 1939".

Still on the evidence as to cattle stealing we next have the evidence of Mr. Woodgate and Atanasio, who depose to the finding of cattle and sheep on 18th May at the house of second appellant at Magodes. According to the latter their number approximated the number stolen from Makuli's hut. Maswajuli also identified the cattle at Tororo. Further corroboration as to part of the evidence of Mafabwe and Mabongo is furnished by Binani and Bitamise.

That we think completes the case for the Crown qua a charge of cattle stealing. On that evidence there can be no doubt that both appellants had engaged in cattle stealing.

But the Crown ask us to go further and say that because those four men with a common intent stole those cattle and because the owner of the cattle disappeared between some time on the Monday morning (15th May) some twelve to fourteen hours before the theft and was not seen again until his dead body was discovered in the river some time on Thursday, the 18th May, they have proved beyond all reasonable doubt that the two appellants were responsible for the death of Makuli. So far as the finding of recently stolen cattle in the possession of persons accused of theft is concerned this case is clearly within the judgment in $\text{Rex } v$ . Exall, 4 Foster and Finlason's Reports, 922. In that case Chief Baron Pollock commences his summing up to the jury as follows: $-$

"The fact that the three prisoners were found together on the night of the burglary, and also the next morning, would be of little importance, unless one of them was proved to have been concerned in the burglary."

At page 924 the learned Chief Baron says: —

"The principle is this, that if a person is found in possession of property recently stolen, and of which he can give no reasonable account, a jury are justified in coming to the conclusion that he committed the robbery. And so it is of any crime to which the robbery was incident or with which it was connected, as burglary, arson or murder. For, if the possession be evidence that the person committed the robbery, and the person who committed the robbery committed the other crime, then it is evidence that the person in whose possession the property is found. committed that other crime."

In regard to this latter obiter see the footnote $(a)$ of the learned authors at page 926.

The foundation of the theory of "Recent Possession of the Fruits" of Crime" as laid down in Wills on Circumstantial Evidence (7th editon) p. 93, is explained as follows: $-$

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"Since the desire of dishonest gain is the impelling motive to theft and robbery, it naturally follows that the possession of the fruits of crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender unless he can account for such possession in some way consistent with his innocence".

To return to the present case vis-a-vis murder let us examine what evidence there is that Makuli was murdered.

We have the evidence of Mafasuli that deceased was alive and presumably well on the morning of the 15th May and that when the witness returned the following morning he did not find deceased there.

Then we have the evidence of the Gombolola Chief that he recovered the dead body of the deceased from the river on the 18th May.

The doctor examined the body on the 19th May and found no visible external signs of violence-no post mortem was carried out and no evidence given as to how long the body had been dead or how long in the water. The doctor states that death was definitely not due to drowning but having regard to what is stated in Vol. I of Taylor's Principles and Practice of Medical Jurisprudence (Eighth Edition) p. 635 et seq we should have welcomed the reasons for this definite opinion. The doctor considered that death was due to suffocation owing to the protruding eyes and tongue and that death took place before the body came into the water. He does not think that death was due to natural causes but of course cannot say if the cause was accidental or deliberate.

Mr. Woodgate states that to him the body looked as if it had been strangled.

It is laid down in Wills on Circumstantial Evidence (supra) at page 104, that: "The possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft". (Here we would stress the words "connected with theft" as we would the words of Pollock, C. B., in Exall's case: "to which the robbery was incident or with which it was connected").

In the case of Rex v. Rickman (1789) 2 East P. C., 1035, upon an indictment for arson, proof that property which was $in$ the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, was held to raise a presumption that he was present at, and concerned in, the offence.

In Queen Empress v. Sami and Another, 13 Mad. 426, "persons convicted of robbery by a Sessions Judge and a jury and of murder by the Sessions Judge with assessors appealed to the High Court against the conviction on the charge of murder. Held that in coming to a conclusion as to whether the evidence justified the conviction appealed against, the verdict of the jury should not be taken into consideration.

But on its appearing that the two offences constituted parts of the same transaction, *Held* that recent and unexplained possession of the stolen property which would be presumptive evidence against the prisoners on the charge of robbery was similarly evidence against them on the charge of murder".

Sogaimuthu Padayachi and Another v. King Emperor, $\mathbf{I}\mathbf{n}$ 50 Mad. 274, it was held that where unexplained possession of stolen property belonging to a deceased person is the only circumstance appearing in the evidence against an accused charged with murder and theft, he cannot be convicted of murder unless it is satisfactorily proved that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered. The judgments of Wallace, J., and Spencer, C. J., are of interest, more especially the dictum of Wallace, J., quoted with approval by the C. J.: "Neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen goods".

In the case of Rex v. Yego Kitum, 4 E. A. C. A., 25, it was held that the possession by the accused, so soon after the murder, of property of the deceased was strong evidence that he stole such property, and with the other circumstances of the case led to the irresistible conclusion that he also murdered the deceased.

Can it be said in the present case that the circumstances pointing to murder by the appellants are in any way comparable for weight and cogency with those appearing in the cases we have above referred to? We think not. The Crown have proved an unimpeachable case of stock theft against the appellants but have in our opinion quite failed to bridge the gulf between stock theft and murder. And in cases of this kind we are of the opinion that the medical evidence as to the cause of death should be fuller. We are, however, deciding the case on the ground that a nexus between the stock theft and the death of Makuli has not been established.

The appeals are allowed, convictions quashed and sentences set aside.